United States District Court, D. Minnesota
EAST COAST TEST PREP, LLC, d/b/a Achieve Test Prep, and MARK OLYNYK, Plaintiffs,
ALLNURSES.COM, INC.; ABC COMPANIES 1-10; John Does 1-10; DAVID R. SMITS, as Administrator of the Estate of Brian Short; LISA DUKES; JENNIFER MOELLER; and UHURA RUSS, Defendants.
Charles S. Kramer, RIEZMAN BERGER, P.C., Richard L. Ravin,
HARTMAN & WINNICKI, P.C., Robert A. Lengeling, BEITO
& LENGELING, PA, and Thomas M. Beito, BEITO &
LENGELING, PA, for plaintiffs.
J. Kretsch, Jr., and John D. Reddall, KRETSCH LAW OFFICE,
PLLC, and Keith J. Miller and Justin T. Quinn, ROBINSON
MILLER, LLC, for Defendants Allnurses.com, Inc., and David R.
MEMORANDUM OPINION AND ORDER
R. TUNHEIM CHIEF JUDGE
Inc., and David R. Smits, as administrator of the Estate of
Brian Short, (collectively “Defendants”) move for
sanctions against Plaintiffs and for a protective order
pursuant to Federal Rule of Civil Procedure 26(c). Defendants
seek to allocate the costs associated with producing and
storing electronically stored information (“ESI”)
in response to a discovery request by Plaintiffs.
Court has before it a Report and Recommendation
(“R&R”) of United States Magistrate Judge
Elizabeth Cowan Wright recommending that Defendants'
motion be denied, as well as Defendants' objections to
the R&R. Also before the Court is Defendants' Motion
for Review of Clerk's Action, in which Defendants seek
the Court's review of costs denied by the Clerk.
the Magistrate Judge did not clearly err in determining that
Defendants' Motion for Sanctions and a Protective Order
should be denied, the Court will overrule Defendants'
objections, adopt the R&R, and deny the Motion.
Additionally, since only some of the costs that Defendants
seek to tax fit within the scope of what may be taxed by a
prevailing party, Defendants' Motion for Review of
Clerk's Action will be granted in part and denied in
Allnurses.com, Inc., hosts a website that “provid[es] a
place where nurses can network, share, and learn from their
peers.” (3d Am. Compl. ¶¶ 4, 39, Jan. 24,
2017, Docket No. 268.) Plaintiffs East Coast Test Prep, LLC,
and Mark Olynyk brought an action for defamation, citing
numerous posts on the website as well as certain actions and
inaction of moderators and administrators of the site.
(E.g. Id. ¶¶ 136, 139, 174.) The case was
ultimately dismissed. (J., Aug. 10, 2018, Docket No. 451.)
now seek to transfer to Plaintiffs the costs associated with
producing and storing ESI related to Plaintiffs' Fifth
Request for Production of Documents and Things (“Fifth
Request”). (Mot. for Sanctions at 1-2, Aug. 24, 2018,
Docket. No. 452.) In addition, Defendants move for sanctions
against Plaintiffs' counsel for “excessive costs
incurred based on the vexatious and unreasonable discovery
requests” by Plaintiffs. (Id.) The Magistrate
Judge recommends that Defendants' motion be denied.
(R&R at 20, Dec. 11, 2018, Docket No. 490.) Defendants
object. (Objs., Dec. 26, 2018, Docket No. 493.)
also seek the Court's review of taxation of costs denied
by the Clerk. (Mot. for Review of Taxation of Costs, Dec. 26,
2018, Docket No. 491.)
heart of this dispute is Plaintiffs' Fifth Request, which
Any and all computers, servers, devices, network appliances,
backups, ESI storage, or other information technology
equipment and media (collectively “IT Equipment and
Media”) (i) belonging to Brian Short, (ii) used by
Brian Short at his home, or (iii) used by Brian Short to
remotely access allnurses.com . . . . As used herein, (a)
“device” includes without limitation, cell
phones, smart phones, and tablets, (b) network appliances
includes without limitation, routers (wireless or otherwise),
and modems, and (c) “belonging to Brian Short”
means belonging to Brian Short at or before the time of his
death, even though the thing may now be owned by his estate
(Decl. of John Reddall (“Reddall Decl.”)
¶¶ 2-3 & Ex. A, Aug. 9, 2017, Docket No. 392.)
Judge Janie Mayeron specifically addressed the issue of
allocating ESI production costs in a January 2016 order,
The producing party shall bear the cost of e-discovery.
Nothing in this protocol, however, shall preclude a party
from seeking to shift the costs of e-discovery during this
proceeding or at the conclusion of this proceeding pursuant
to Fed.R.Civ.P. 26 and 54 or 28 U.S.C. § 1920.
(ESI Protocol Order at 3, Jan. 12, 2016, Docket No. 89.)
sought information from the personal computers and devices of
Brian Short, the founder and President of Allnurses.com,
after they learned that Short had done work for Allnurses.com
at home. (Decl. of Paul A. Grote (“Grote Decl.”)
¶¶ 10-14 & Ex. E at 10-11, Aug. 18, 2017,
Docket No. 405; 3d Am. Compl. ¶ 5.) Short died on
September 10, 2015, and his computers and devices were in the
possession of Minnesota law enforcement officials. (Grote
Decl. ¶¶ 5, 15.) The devices were returned to
Short's estate around March 1, 2017. (Id.) When
Plaintiffs learned that these computers and devices had been
returned, they filed their Fifth Request. (Id.
same day Plaintiffs filed the Fifth Request, they offered to
send their own consultant to examine and create digital
images of the information located on Short's computers
and devices, but Defendants did not respond to this offer.
(Id. ¶¶ 17-19.) In the meantime,
Defendants consulted with Mark Lanterman of Computer Forensic
Services (“CFS”) who advised that the only
reliable method to mitigate risk of data loss or device
failure was to make a forensically sound image of the
computers and devices. (Reddall Decl. ¶ 6.)
Lanterman's advice, Defendants provided CFS thirty-five
devices on April 20, 2017, and asked CFS to forensically
preserve, or “image, ” them. (Decl. of Mark
Lanterman (“Lanterman Decl.”) ¶ 13, Aug. 9,
2017, Docket No. 391.) Imaging ensures that data cannot be
altered during analysis. (Id. ¶¶ 10-11.)
Of these thirty-five devices, eighteen were imaged.
(Id. ¶ 13.) Imaging the devices cost Defendants
$7, 150.00. (2d Decl. of John Reddall ¶ 2, Ex. A
(“Invoice”) at 1, Aug. 24, 2018, Docket No.
454-1.) In addition to charging for imaging the devices, CFS
also charges $2.50 per gigabyte per month to ...